About Vik Vij

Vik Vij is a criminal defense attorney in Houston practicing in Harris, Galveston, Brazoria and Fort Bend Counties. He's the father of two amazing girls and is a fan of all things Houston. Connect with Vik on Twitter at @Vikvijlaw

Face it, it’s going to happen to all of us. An 11.07 writ alleging ineffective assistance of counsel (“IAC” for short). Essentially, a client or former client is accusing the lawyer of representing them poorly or misleading them in some way, thereby causing their incarceration. This happened to me this year. I was initially pretty upset, but I was also prepared.

The details aren’t that important, but some basic facts are material. My client, who we can call “Donnie” was accused of robbery. He was on parole for murder and had been convicted of several prior felonies. He has been incarcerated most of his adult life. This offense was also committed in front of a surveillance video camera. Making matters worse, and harder to defend, my former client Donnie confessed to every element of the offense on video after being Mirandized by a professional and thorough detective. For some reason, the ADA on the case did not list the enhancements on the indictment but everyone was aware of their existence and the great leverage they provided. Eventually, Donnie pled guilty and was sentenced to six years in prison. I was very pleased with that result. Donnie’s family was pleased with that result. Donnie himself was ecstatic being sentenced to only six years with the indefensible facts and his numerous prior convictions and the possibility of facing a minimum of 25 years in TDCJ.

Flash forward to this year, I received a package from the clerk’s office containing the 11.07 Writ, the State’s Answer (basically punting) and an order for me (trial counsel) and an attorney from TDCJ to provide affidavits as to our memories of the case so that the trial court could make findings of fact and rule on the 11.07 writ.

While I was not anticipating such a matter in this case, I was aware it could happen. And I was ready. My client alleged I did not share the facts of the face with him, mislead him about the possibility of parole and was generally ineffective.

In this case, as well as all other cases, I followed the same practice. I kept my physical file in storage (alphabetically for easy access but that may be some level of OCD) along with all discovery materials, my notes, work product and details of my meetings and correspondence with my client, the ADA, witnesses, and Donnie’s family. I was able to detail my meetings with the client, the letters and correspondence I sent him and the ADA and the dates of the jail visits very easily. I prepared an affidavit detailing what Donnie was told and when.

I certainly don’t relish the fact that Donnie will spend some more time in prison, but I sleep soundly at night that he knew exactly what was going to happen to him during our case and that his plea was done freely and voluntarily. I also sleep soundly at night that I have detailed notes in his file as well as all my other cases so that I can defend myself if needed.

I was recently in trial on a difficult case. It was a felony DWI, so the jury knew my client had at least two priors from the get go. The DA, a long-time prosecutor, mentioned that in Voir Dire at least 15 times. Truth be told, it was not just my client’s third DWI, it was actually my client’s sixth DWI since 2009. But, my client (who we can call James) wanted a trial. So we fought.

James had a tough case. He was accused of running a police officer off the road late at night, on video. He was accused of driving north in south-bound lanes for more than a mile. He was accused of registering a BAC of over .20. He was accused of urinating in his pants in the police car after being arrested. James was accused of fighting with the nurses who drew his blood. He was accused of unloading a stream of expletives that would make George Carlin or Sam Kennison blush. He was accused of having whiskey and beer in the car. Worst of all, this was all on video. James was offered twelve years and then, after a lot of negotiation, eight years in prison. We refused the offers. So we fought.

Thanks to some good lawyering in the past, James was only looking at one enhancement despite this being his fourth felony arrest. His first felony was reduced to a misdemeanor, the second resulted in probation and the third led to two years in TDCJ. Here we were, with a tough case, worse facts and a man seemingly out of breaks. He insisted on a trial. So we fought.

We picked a jury during a tornado. I was soaking wet standing in front of the venire. We got a decent jury, despite them being told over and over about the jurisdictional enhancements. We started testimony right after that. The first witness was the only officer who did the Standard Field Sobriety Tests. He was very honest and very likeable. The deputy told us this was the second time he had ever done SFST’s and that is was likely he made several mistakes. He was very well received by the jury.

The second deputy was another matter. He was not certified to do the tests, was cocky and hostile, and had a hard time finding the truth. He insisted my client was unsteady on his feet. After watching the video for more than ten minutes without so much as a shuffle, he would not concede his mistake or lie.

There is nothing really exciting about the rest of the trial. The chemist testified and there were no facts for retrograde extrapolation. The jury deliberated for about 90 minutes before they reached a guilty verdict. This was not much of a surprise. I spoke to several jurors after the verdict and the horrible driving, especially on video, was critical. They ignored the SFST’s and were split on the blood, but the driving was too much to overcome.

We elected to go to the court for punishment. We had decent mitigation. My client started drinking after the man who raised him, who he was named after, passed away suddenly in front of my client. All his legal trouble, all 6 DWI’s, were after James’ grandfather died. The DA asked for twenty years and a $10,000 fine. He challenged the judge to “bridge the gap” between James and the community. I argued for leniency. The judge sentenced James to six years in prison.

There is an idea that “winning” is a fluid concept on this side of the table. Often, we have terrible facts, caught on video even. We have clients with difficult attitudes and worse criminal histories. We fight DA’s and judges. But, beating the offer was satisfactory to my client. He knew we had bad facts. He knew he had numerous priors. He knew what the video looked like and what the police testified to, and he knew that we did what we could with what we had. He wanted the fight.

I was recently appointed to represent a young woman charged with a felony. We can call her “Jasmine.” Upon reviewing her file and the police report, it seemed something was very strange. Jasmine was the passenger in a stolen vehicle that was owned by a law enforcement officer. She was partially undressed and in the car with a man who she didn’t know when the vehicle was stopped.

When I went to talk to her, she was irate. She was confused about why she was being charged with Unauthorized Use of a Motor Vehicle and began yelling. The other women in the holding cell tried to calm her down. I tried to calm her down. Jasmine was just stringing words together that made no sense at all. I couldn’t ask her simple questions such as “Where is your family?” or “Who can I call to help you?” I noticed she had a medical bracelet on her arm. I tried to ask her if she had seen a psychologist or psychiatrist since she had been arrested a few days earlier. She couldn’t tell me. I filed a motion to have her examined for competency and am awaiting those results.

Last year, I represented an older man who had been in prison for most of the past twenty five years. “Frank”, as we can call him, told me that he had spent a lot of time in isolation because of behavior issues. Unlike Jasmine, he could communicate with me but he had a long history of mental health issues. He told me was just better off in custody than on the streets. Frank was able to get some level of care in custody that he could not on the outside. He was happier in custody, he told me. He received his medication in custody, he said.

In 2015, I represented a young man who had been in prison several times and was charged with a new felony. “Steven” also had been in trouble for a multitude of minor offenses, such as trespassing, possession of marijuana, and driving with an invalid license. He was accused of threatening an officer, which I argued took place during a mental health episode. Luckily, this incident was recorded on video and his case was eventually dismissed. But, during the several months his case was pending, Steven continued to have mental health issues. I asked for him to be examined, and he was- twice. Both times he was found to be competent despite having several serious diagnoses and taking heavy duty medication.

During that same period of time, I represented a man charged with violating his probation. “Ricky” was very young. He could have been the poster child for societal issues. His father was in prison, his mother was in prison, his grandmother who raised him was dead and his only living relative was an uncle who was, at best, marginally interested in providing for Ricky. He dropped out of high school, started doing drugs and was headed nowhere, fast. Ricky also exhibited some very strange behavior. The judge in that court tried to work with him and sent him to several different programs in lieu of prison. Each time, he violated the rules and regulations of the programs. The judge even provided money so that I could bring in a psychiatrist to evaluate him. Eventually, after more than eighteen months of trying to keep him out of prison, Ricky’s good fortune ran out. He was accused of assaulting several people in custody and his probation was revoked.

There are some diversion programs available in Harris County, including the Mental Health Court but typically, people require a specific, “qualifying diagnosis” to gain admission into this court, and certain types of offenses are bars to admission. Some people, like Ricky, do not have a “qualifying diagnosis” but still clearly need services. There are programs in the jail to help people, but far too often, it’s incredibly difficult or impossible for uninsured people, or homeless people, or people on the fringes of society, to keep appointments with social workers or doctors, or refill prescriptions, or go to probation meetings.

So what’s the solution? More programs? More funding? More doctors and mental health professionals? You tell me.

2016 certainly left a bitter taste in many people’s mouths. Of course, many people remain upset about the presidential election. Locally, the District Attorney lost her bid for re-election as did many judges. In the aftermath of the election, nearly 40 high level prosecutors were told their services would no longer be required under incoming District Attorney Kim Ogg. Some of our comrades have gotten sick, passed away and divorced. We also lost courthouse fixture Rick Johnson. Even this week between Christmas and New Year’s Day, celebrities Carrie Fisher and George Michael died, adding to a list that has already gotten too long.

The look of the Criminal Justice Center is unquestionably going to be very different on January 2, 2017. Some of the changes, I hope, will be for the better. Others are not as optimistic. Don’t worry, I won’t name names, pessimists. But what are the changes we are hoping to see? What attributes are we looking for in our new prosecutors and judges?

Assuredly, there are certain characteristics and traits we hope to see. First, prosecutors must seek justice not only convictions. All too many times, under prior regimes in Harris County, has there been a win-at-all-costs mentality, or at least perception. Making secret deals with witnesses, sponsoring dubious or worse testimony, protecting bad acting police officers, hiding evidence, and seeking convictions without evidence are not the hallmarks of an honorable prosecutor, or office.

Quite the opposite, in fact, should be true. I was recently appointed to represent a young man charged with theft. Due to his numerous prior theft convictions, he was facing a felony, and because of other convictions, he was looking at an enhanced penalty range of two to twenty years in prison. I spoke with the chief prosecutor on the case after reviewing the police report and watching the surveillance video. The evidence was quite clear; my homeless client had stolen a premade sandwich, yogurt and juice from a convenience store.

I prepared to argue about my client only stealing bread and the desperation many homeless people feel but before I could open my mouth the prosecutor said he would offer time served to my client. No argument, no back and forth, but time served. Justice in this case was time served. My client knew he had broken the law ad was prepared to face the consequences. He was so surprised he was getting out that day that he began to tear up. I told him the prosecutor on his case was seeking justice and not merely seeking convictions and was one of the good ones in the courthouse.

This is the model that should be strived towards. Justice, not hammering a desperate homeless man for stealing food by sending him to prison for years. I am hopeful that the new prosecutors or those taking new positions in the administration and office follow this model and avoid becoming a Javert, only seeking punishment and prison.

In regards to the judges, both new and old, we hope for three characteristics primarily. First, neutrality. A judge should be like an umpire in baseball. Call the balls and the strikes; don’t play shortstop. In my practice, I travel to four counties in the Houston area and have been in front of numerous judges. Some are incredibly fair to both sides, allowing both sides to put on a case. Some are tough on both sides. Some clearly have their favorite side, or lawyer, and make things difficult for all others involved. Having to combat the prosecutor during the trial is often cumbersome on its own accord, adding a judge to the mix is fundamentally contradictory to justice.

The second is fairness, which I admit is closely related to the first topic. Being “tough on crime” is both a topic previously discussed on this blog and exactly not what judges are supposed to do. Call the balls and strikes, but, if you want to play, pick a side: open a law office or apply for a job with the District Attorney’s Office of your choosing. In some courts, electing the judge for punishment can be considered malpractice because some judges want to be “tough on crime.” Sometimes, people deserve to be punished and punished severely for their crimes and there is a time and a place for that. But that is not the case in every trial.

Third, and also related to the first two topics, is consistency. I recall being a young prosecutor practicing in front of a judge who had a pet peeve for burglary cases. This judge wanted people to take classes as part of any probation for burglary, but was consistent in this regard. I recall another judge who simply would not allow the District Attorney to ask potential jurors about the One Witness Rule, whether it was germane or not. Other judges, depending on the day, can swing wildly from side to side in punishment, or what areas could be discussed in front of the jury. This makes practicing in front of those judges akin to walking through a minefield. If you know where not to step, you’ll be ok but if you don’t know which step could be your last, it’s nearly impossible.

I am hopeful that the new judges will be neutral, and fair and consistent.

I have a friend we can call Kevin. Kevin and I are pretty similar. We are both criminal defense attorneys. We are both former prosecutors. We are both fathers. We are both recently divorced. I wouldn’t say he and I are great friends, but I’ve known him a long time. I handled cases with him when I was a prosecutor and he was a new defense attorney. We would talk and joke together. Kevin was, and is, a good guy. We knew about each other’s lives in a general sense.

I would see Kevin in court and around the courthouse. We would exchange pleasantries and chat briefly. I had lunch with Kevin about a month ago. He told me a lot of things, in confidence, about his life, his ugly and messy divorce, and his kids. To make a long story short, his wife left him and multiple kids and left Texas. He was struggling with all his responsibilities, emotionally and I suspect financially as well. That was clear.

Very recently, Kevin was arrested. The details don’t matter, but he was arrested inside the courthouse. His charges can, and likely will, have great impact on his standing with the State Bar. He has a very good lawyer defending him. He has, whether he is conscious of that now or not, a lot of support. Kevin has a network of friends inside and outside the courthouse who are here for him, whether he knows it or not.

One of the hardest aspects of defending those accused of crimes is emotional processing. We see and hear some awful things. Violence, sexual violence, drugs and the cumulative impact on our clients, their families, victims, and so many others in the criminal justice system. These things also affect us sometimes heavily. Often, our clients are accused of heinous things. We see and hear all the details. We need to remain emotionally detached so that we can make rational and logical decisions to help our clients, but, at least for me, caring makes me a better lawyer. I care what happens to my client, and his family, and his life. I am still trying to find the right balance, but feel like I’m able to care and make sound and balanced decisions. I have to care but that takes a toll on me, and all of us I suspect. In every case.

At the same time, life is never put on pause while we defend our clients. We have lives. We have relationship problems and divorces. Our kids get sick. Our friends and families have problems and often they look to us for help. Where do people like Kevin, or, me, or even you, look for help? Similarly, our practice is never put on hold when we have personal problems. Clients will understand to a degree, but their case is not any less important to them because you’re getting divorced or your mother is in the hospital. So what are we supposed to do?

I’m not so egotistical that I think me calling Kevin to check on him after our lunch would have kept him from getting arrested, but I still should have called. I knew he was struggling and I had been through so much of what he was facing. Even if I couldn’t offer him concrete help, I could have told him I supported him.

I don’t have all the answers. I know HCCLA puts on a great Seminar named after a lawyer who really struggled. (The Annual Donald Davis: Dealing with the Practive). It’s a great seminar. I also know I have a cell phone, as do we all. Call me (713-452-0255) anytime or call another friend. Lean on me, or somebody. You’re not facing the world alone. The weight of the world but seem like it’s all on your shoulders, but it’s not. Share some of your burden. Don’t put your future, your freedom, or your livelihood at risk.

Originally Aired: May 03, 2018Discussion: Caller discusses problems at DA intake and the decisions to accept cases that they can't or shouldn't prosecute. The DAO needs to properly use their resources. The low level marijuana cases aren't being prosecuted by the DAO and caller says DWLI and trespass cases should be treated the same way.

About Reasonable Doubt:HCCLA's Reasonable Doubt is a TV show produced by the Harris County Criminal Lawyers Association (HCCLA).

HCCLA is the largest local criminal defense bar in the country and is comprised of over 800 criminal defense attorneys. The show features relevant topics and guests from the criminal justice community. We broadcast LIVE every Thursday from 8-9p CST so send in suggestions & questions via the channels below.